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THE P.R.C.

’S NEGOTIABLE INSTRUMENTS
LAW: AN INSTRUMENT FOR FACILITATING
PRIVATE ECONOMIC ACTIVITY OR
MONETARY CONTROL?
Amy L. Sommers†
Kara L. Phillips††

TABLE OF CONTENTS

I. INTRODUCTION.......................................................... 317

II. GENERAL PROVISIONS ................................................ 321

III. DRAFTS ................................................................... 328

IV. PROMISSORY NOTES .................................................. 338

V. CHECKS ................................................................... 341

VI. FOREIGN-RELATED INSTRUMENTS................................ 344

VII. VIOLATIONS .............................................................. 346

VIII. CONCLUSION ............................................................ 347

I. INTRODUCTION
In the years since China began its market reforms,
negotiable instruments have played an increasingly

† Amy L. Sommers practices with the law firm of Garvey, Schubert &

Barer in Seattle, Washington. Ms. Sommers is a graduate of the University of


Washington’s School of Law, and attended the Inter-University Program for
Chinese Language Studies in Taipei, Taiwan. Ms. Sommers’ practice focuses on
general business, corporate finance, and international transactions.
†† Kara Phillips is currently Collection Development Librarian at Seattle

University Law Library. She holds a J.D., with honors; M.A. in International
Studies, China Regional Studies; Master of Librarianship, with Certification in
Law Librarianship; and B.A., magna cum laude, in International Studies from
the University of Washington. She was recently a Blakemore Fellow at the
Inter-University Program for Chinese Language Studies in Taipei, Taiwan.

317
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important role in China’s economy.1 Their usage facilitates


circulation of commodities, timely settlement of debts, and
decreases reliance on cash.2 Promoting the increased use of
negotiable instruments is significant in light of China’s huge
circulation of cash,3 which has made it difficult to control the

1. See Ren Kan, China: Cheques, Other Negotiable Instruments Given


Boost, BUS. WK. (China Daily Supplement), May 21, 1995, available in LEXIS,
Asiapc Library, Allasi File; see also Huang Wei, Negotiable Instruments Used in
Economic Activities, BEIJING REV., Aug. 26–Sept. 1, 1996, at 17.
[The] Chinese began using [negotiable] instruments in the first year
during the reign of Dezong of the Tang Dynasty at the end of the eighth
century. . . . In 1929, the Kuomintang government promulgated China’s
first law of negotiable instruments. . . .
After New China was founded in 1949, cashier’s checks were
eliminated and drafts were used only in international trade, while
checks were used by government offices, businesses and institutions for
the transfer of accounts. Instruments were managed in accordance with
the administrative rules and regulations published by the state bank
and related departments.
In 1988, the state published the Provisional Regulations on Cash
Management and the Banking Settlement Method, introducing
negotiable instruments such as banking drafts, commercial drafts,
cashier’s checks and personal checks, and allowing individual
industrial and commercial households, as well as individuals to use
checks.
Id.
2. See Ren Kan, supra note 1. Negotiable instruments have been “used to
settle 60% of accounts throughout the country. The daily settlement value of
negotiable instruments amounts to 104bn yuan” or US$12.3 billion. Id. Every
year, Chinese banks “use 54 million money orders, one billion cheques and 8.6
million cashier’s cheques involving more than 45 trillion yuan” or US$5 trillion.
See China Drafts Law on Negotiable Instruments, REUTERS WORLD SERVICE, Feb.
22, 1995, available in LEXIS, Asiapc Library, Allasi File; see also Huang Wei,
supra note 1, at 17 (“Incomplete statistics show that at present, various
Chinese banks use around 54 million drafts valued at 4,500 billion yuan, and 1
billion checks valued at 36,000 billion yuan annually.”). More recently, “The
number of instruments used accounts for around 70 percent of various forms
of non-cash payment. In large, economically developed cities, the use of such
instruments for settlement exceeds 90 percent.” Id.
3. See Siow Li Sen, S’poreans Carry the Most Cash in Asia After Japanese,
BUS. TIMES (Singapore), July 16, 1997, at 2, available in LEXIS, News Library,
Non-US File. “The amount of currency in circulation makes up 14.57 percent of
China’s GDP” partly because “the general public and commercial departments
still prefer cash and are often unwilling to use or receive personal cheques . . .
for fear of tax investigation” and people “spend most of their salary
immediately.” Id.; see Liu Weiling, China: Cheques Still a Rarity in China, BUS.
WK. (China Daily Supplement), Sept. 12, 1993, available in LEXIS, Asiapc
Library, Allasi File. Furthermore, certain banking and business services are not
readily available in some areas of China.
“Personal checks are almost unknown in China, and company checks
are very limited” . . . . Chinese business people routinely lug suitcases
full of cash to pay for purchases. Since credit isn’t available, a seller
1998] CHINESE NEGOTIABLE INSTRUMENTS 319

total money supply, slowed the circulation of capital, and


complicated monetary clearing procedures.4 While negotiable
instruments have been utilized for some time according to
commercial practice and custom, no over-arching legal
framework has existed to clarify and protect parties’ legal
rights.5
The Negotiable Instruments Law of the People’s Republic
of China was enacted on May 10, 1995, by the Eighth
Standing Committee of the National People’s Congress, the
highest legislative body of the People’s Republic of China
(PRC).6 The Negotiable Instruments Law, which came into
effect January 1, 1996,7 consists of seven chapters, covering
General Provisions, Drafts, Promissory Notes, Checks,
Applicability of the Law to Foreign Negotiable Instruments,
Legal Responsibilities, and Supplementary Provisions.8
Chapter 2 (Drafts) contains detailed provisions on
endorsement, acceptance, guarantee, payment, and the right
of recourse.9 Subsequent chapters discussing the various
types of negotiable instruments, such as checks,10

must negotiate for a cash deposit and cash payments on delivery. Once
paid, the seller then must arrange for one of the few American banks in
China to convert Chinese cash to U.S. dollars.
Absorbing Culture Shock, OR. BUS., Mar. 1995, at 18, 18 (quoting Haiyang R.
Yuan, President and owner of China Business Service, an Oregon based
company).
4. See Ling Ling, China: Plethora of Policies to Reduce Cash Flow, BUS. WK
(China Daily Supplement), Sept. 12, 1993, available in LEXIS, Asiapc Library,
Allasi File. According to Xie Zhong, an official with the People’s Bank of China,
“‘A reduced cash circulation is of crucial importance to controlling the money
supply, which is a key issue in the ongoing economic readjustment.’” Id.
(quoting Zhou Zhengqing, Executive Deputy Governor, People’s Bank of China).
5. See Ren Kan, supra note 1; see also China Drafts Law on Negotiable
Instruments, supra note 2 (“‘[M]any disputes and instruments-related crimes
have occurred due to a lack of a law on negotiable instruments, and
substandard practices in handling instruments are rife.’”).
6. See Negotiable Instruments Law of the People’s Republic of China (May
10, 1995), translated in CHINA ECON. NEWS SUPPLEMENT, July 3, 1995
[hereinafter Negotiable Instruments Law]. For an alternate translation, see PRC
Negotiable Instruments Law, translated in BBC SUMMARY WORLD BROADCASTS,
May 30, 1995, available in LEXIS, Asiapc Library, Bbcswb File [hereinafter BBC
Translation].
7. See Negotiable Instruments Law, supra note 6, art. 111. The People’s
Bank of China will formulate detailed regulations for administering this law.
See id. art. 110. The People’s Bank of China will determine the form of
negotiable instruments and their method of printing. See id. art. 109.
8. See id. Contents.
9. See id. ch. 2, arts. 19–72.
10. See id. ch. 4, arts. 82–94.
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promissory notes,11 and foreign instruments,12 incorporate


these provisions by reference.
While the Negotiable Instruments Law constitutes a
comprehensive financial statute,13 it is perhaps more
significant for what it does not address than for what it does.
Without expressly stating so, the Negotiable Instruments Law
is, in effect, a banking statute, one of several enacted at
roughly the same time.14 It addresses a range of transactions
or activities involving the use of negotiable instruments,15 but
they are largely transactions in which banks participate,
such as the negotiation of drafts, which need not necessarily,

11. See id. ch. 3, arts. 73–81.


12. See id. ch. 5, arts. 95–102.
13. See Huang Wei, supra note 1, at 18.
Through halting and punishing illegal activities, the law standardizes all
activities dealing with negotiable instruments, safeguards the normal
settlement order and places credit activities under legal jurisdiction.
This law has been a great help to businesses. Commercial draft
acceptance, and discount and rediscount instruments increase creditor
and debtor responsibility, facilitating the establishment of a mutual
supervisory mechanism. Anyone issuing drafts and cashier’s checks
without a reliable source of funds, or obtaining funds by deception, will
be subject to legal sanctions. This measure gives businesses a higher
credit guarantee. Over the past year, various banks nationwide have
handled checks, draft discounts and rediscount business worth around
300 billion yuan. In all those transactions, no one has ever refused to
meet their financial obligations.
In addition, detailed stipulations in the Law of Negotiable
Instruments concerning the repayment time, acceptance time and
related contents force the people who issue, hold and accept these
instruments to do so legally and properly. Furthermore, legal
instruments used for commodity transactions, discounts and
rediscounts closely link the issuance and recovery of credit funds,
commodity sales and the withdrawal of payments for goods sold, thus
ensuring the quick allocation of funds and expediting the turnover of
funds. At present, each turnover of the nation’s bank loans takes 313
days, while the time limit for discount is not more than four months,
and rediscount not more than three months, rotating three to four
times a year.
Id.
14. In 1995 the “National People’s Congress (NPC) and its Standing
Committee successively enacted a much-anticipated wave of banking reforms,
including the: People’s Bank of China Law (PBOC Law), the Commercial
Banking Law, the Negotiable Instruments Law, and the Guarantee Law.” Lester
Ross & Mitchell A. Silk, Banking on Change, CHINA BUS. REV., Nov.–Dec. 1995,
at 35, 35.
15. The Negotiable Instruments Law “applies to all transactions in drafts,
promissory notes, and checks in the PRC, including foreign-related negotiable
instruments, defined as instruments for which draft, endorsement, acceptance,
guarantee, or payment occurs in part within and in part outside the PRC.” Id.
at 38.
1998] CHINESE NEGOTIABLE INSTRUMENTS 321

but in fact often do, involve banks,16 cashier’s checks, and


checks. What the Negotiable Instruments Law does not
address is the use of promissory notes by private parties. It is
in this regard that the Negotiable Instruments Law is most
revealing about the Chinese government’s perception of the
role negotiable instruments should occupy in the economy,
and perhaps the manner of conducting economic activity
generally.17 The resolution of certain unanswered questions
with respect to the Negotiable Instruments Law (if such
issues are to be resolved) depends on the enactment of
detailed implementing regulations or clarification through
practice or judicial interpretation. The decision to address
negotiable instrument usage in a limited fashion reflects a
tension in the Chinese government’s present approach to
reform: to what degree should the state control economic
activity? Are laws to be adopted to further individual
economic activity and opportunity or to facilitate state control
over the process of economic growth? The limited scope of the
Negotiable Instruments Law suggests that the State Council18
adheres to the view that it is desirable to further state control
over economic development and that negotiable instruments
are in fact “instruments” of state involvement with and
supervision over the economy. Correspondingly, the adoption
of the Negotiable Instruments Law in its present form may
reflect that the government is loath to enact laws that
sanction or facilitate the private creation of “money” through
the use of promissory notes.

II. GENERAL PROVISIONS


The Negotiable Instruments Law acknowledges a need to
standardize transactions involving negotiable instruments, as

16. For a discussion of bank involvement in draft related disputes, see infra
note 175 and accompanying text.
17. See Top Legislator Qiao Shi Stresses Power of National People’s
Congress, BBC SUMMARY WORLD BROADCASTS, Dec. 16, 1996, available in
LEXIS, News Library, Curnws File (quoting Qiao Shi, Chairman of the Standing
Committee of the National People’s Congress; stating that economic legislation,
including the Negotiable Instruments Law, is “designed to standardize the
economic activities of the market, maintain market order and improve the
systems of macro-control and social insurance”).
18. “The bulk of legislative drafting work is performed by the State Council
and its subordinate commissions, ministries, bureaus, and think tanks. The
State Council also promulgates the majority of all national laws and
regulations . . . and is, moreover, the key drafter of most of the NPC-
promulgated laws.” Murray Scot Tanner, Organizations and Politics in China’s
Post-Mao Law-Making System, in DOMESTIC LAW REFORMS IN POST-MAO CHINA
56, 65 (Pitman B. Potter ed., 1994).
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well as the need to protect parties’ legal rights and to


promote “the development of the socialist market economy.”19
According to the Negotiable Instruments Law, one does not
have either liability or rights under a negotiable instrument
except through the act of signing or affixing a seal to it.20
Article 4 of the Negotiable Instruments Law states in part:
“Other debtors who have put their signatures or seals on the
negotiable instruments shall be obliged to perform the
obligations arising out of the negotiable instruments.”21 The
use of the term “other debtors” or “debtor” in Article 4 is
ambiguous. The term presumably encompasses all those
liable on a negotiable instrument, such as the drawer,
endorser, acceptor, and guarantor, but because the
Negotiable Instruments Law does not define the term, its
scope is not entirely clear.22 Notwithstanding the general rule
set forth in Article 4 that liability arises only if one signs an
instrument, Article 5 allows agents to sign on behalf of their
principals if the agency relationship is disclosed on the
instrument.23 If the agent fails to disclose the agency, then
the agent becomes primarily liable on the instrument.24
Moreover, if an agent has a limited scope of authority and
exceeds this scope, the agent, and not the principal, is liable
for that part of the obligation that exceeds the scope of the
agent’s authority.25 Where a party lacks legal capacity to
execute a negotiable instrument, such party’s signature is
invalid.26 However, this does not affect the liability of other
parties’ signatures on the instrument.27

19. Negotiable Instruments Law, supra note 6, art. 1.


20. See id. art. 4. The rights which arise out of negotiable instruments are
the rights of the holder to receive payment of the amount stated on the face of
the instrument, and the right of recourse against prior holders. See id. Liability
on the instrument is the liability of the “debtor” to pay to the holder the amount
stated in the instrument. See id. The term “debtor” is not defined, but
presumably includes prior holders. See infra notes 21–22 and accompanying
text. Reflecting Chinese practices, Article 7 of the Negotiable Instruments Law
provides that a party may execute a negotiable instrument either by signing the
instrument, by affixing one’s seal, or both. See Negotiable Instruments Law,
supra note 6, art. 7. The signature or seal must be the party’s actual name. See
id.
21. Negotiable Instruments Law, supra note 6, art. 4.
22. See id. arts. 70–71 (defining draft debtors as including the drawer,
endorser, acceptor, and guarantor).
23. See id. art. 5.
24. See id.
25. See id.
26. See id. art. 6.
27. See id.
1998] CHINESE NEGOTIABLE INSTRUMENTS 323

Articles 8 and 9 specify certain information that must be


included in a negotiable instrument.28 For example, Article 8
states that the monetary amount of the instrument shall be
written out both in Chinese characters and in numbers.29
One form does not govern over the other; in the event of a
conflict between the two, the instrument is void.30 Article 9
provides that the amount, date, and name of the payee
cannot be altered without voiding the instrument.31 However,
the party issuing the instrument may modify other items in
the instrument if he or she certifies the alterations by
signature or seal.32
The Negotiable Instruments Law does not contain a term
precisely comparable to that of a “holder in due course” as
stated in the Uniform Commercial Code (UCC);33 however,
Articles 10, 12, and 13 appear to embody certain principles
contained within the holder in due course doctrine. Article 10
states:
The draft, acquisition and transfer of a negotiable
instrument shall follow the principle of authenticity
and creditability and be treated as a real act of
trading or debt payment.
A negotiable instrument shall be acquired against
a corresponding price, that is, the price
acknowledged by both parties to a negotiable
instrument.34
The first paragraph of Article 10 seems to incorporate the
good faith element of a holder in due course, with its
reference to “authenticity and creditability.”35 The second
paragraph seems similar to the holder in due course
requirement that value be given for the instrument.36

28. See id. arts. 8, 9.


29. See id. art. 8.
30. See id.
31. See id. art. 9.
32. See id.
33. See U.C.C. § 3-302 (amended 1990), 2 U.L.A. 62–63 (1991).
34. Negotiable Instruments Law, supra note 6, art. 10.
35. Id.
36. See id.; see also U.C.C. § 3-302(a)(1). Under Article 11, if a negotiable
instrument is obtained without payment of any consideration in certain
circumstances, including by gift or inheritance, value need not be given. See
Negotiable Instruments Law, supra note 6, art. 11. However, the holder will not
enjoy rights superior to those of the prior holder. See id. art. 11. This appears
similar to the rule set forth in UCC § 3-302(c) and (d). Section 3-302(c) states:
[A] person does not acquire rights of a holder in due course of
an instrument taken (i) by legal process or by purchase in an
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Article 12 embodies the principle that the holder in due


course must take the instrument without notice of dishonor,
default, claims, or defenses.37 Article 12 states:
In the case of obtaining a negotiable instrument
by deception, theft or coercion or obtaining a
negotiable instrument which has been knowingly
obtained by deception, theft or coercion out of
ulterior motives, the holder shall not enjoy the rights
arising out of the negotiable instruments.
A holder who has obtained the negotiable
instruments not conformable to the provisions of this
law due to major errors shall not enjoy the rights
arising from the negotiable instruments either.38
If the holder has notice of these wrongful acts, he or she
will not possess full rights in the instrument.39 However, as
no subject is specified regarding who must commit the
deception, theft, or coercion, or who must know of it, it is
unclear whether it is the holder who must have committed
the wrongful acts or whether liability is strict if the acts have
occurred at all. Arguably, this provision could be construed
to mean that whether the fraud or deception is perpetrated
by the holder or some other person, the fact of its existence
will defeat the holder’s rights in the instrument. In such a
case, a holder could take the instrument unaware of
wrongdoing, and if knowingly obtained by deception by the
previous holder, then the present holder’s rights will be
limited. A similar grammatical construction in original
Chinese makes the meaning of the second paragraph of
Article 12 ambiguous as well: “A holder who has obtained the
negotiable instruments not conformable to the provisions of
this law due to major errors shall not enjoy the rights arising
from the negotiable instruments either.”40 Whose “major
errors” are at issue—the holder’s or some other party’s?

execution, bankruptcy, or creditor’s sale or similar


proceeding, (ii) by purchase as part of a bulk transaction not
in ordinary course of business of the transferor, or (iii) as the
successor in interest to an estate or other organization.
U.C.C. § 3-302(c). Section 3-302(d) states: “[T]he holder may assert rights as a
holder in due course of the instrument only to the fraction of the amount
payable under the instrument equal to the value of the partial performance
divided by the value of the promised performance.” U.C.C. § 3-302(d).
37. See Negotiable Instruments Law, supra note 6, art. 12.
38. Id.
39. See id.
40. Id.
1998] CHINESE NEGOTIABLE INSTRUMENTS 325

In analyzing the provisions of Articles 10 and 12


together, they seem to incorporate certain elements of the
holder in due course doctrine and require that the
circumstances of every transaction be scrutinized to
determine whether the parties have a true contractual
relationship, negotiated in good faith, have given
consideration, and did not commit fraud or major errors.
Article 13 provides in part:
Negotiable instruments debtors shall not
protest41 against the holder by using the ground of
protesting against the drawer or the prior holder,
except when the holder has obtained the negotiable
instruments with the c[l]ear knowledge of the ground
for protest. Negotiable instruments debtors may
protest against holders who have [a] direct debtor-
creditor relationship but refuse to perform their
agreed obligations.42
Apparently, the term “debtor” as used in this provision
includes a drawee, as well as a prior holder against whom
rights of recourse are sought. Such persons may not raise
defects in the performance of the drawer’s or prior holder’s
underlying obligations against a holder, unless that holder
himself knows of such problems. Query when the holder
must be in possession of such knowledge for his rights to be
defeated. Article 13 implies that it is the holder’s knowledge
at the time the instrument is acquired that is important.43
What would be the result if the holder did not know of the
grounds for protest at the time he acquired the instrument,
but became aware of them prior to negotiating it further? An
argument can be made that Article 13 as drafted does not
limit such holder’s rights. In any case, an exception exists
where the holder and the negotiable instrument debtor have
a direct debtor-creditor relationship. In such a case, the
debtor can raise the holder’s failure to perform the
underlying obligation as a defense to payment on the
instrument.44

41. The term “protest” refers to when negotiable instrument debtors (the
drawee or prior holders) refuse to perform their obligations to the
creditors/holders. See id. art. 13.
42. Id.
43. “Negotiable instruments debtors shall not protest . . . except when the
holder has obtained the negotiable instruments with the c[l]ear knowledge of
the ground for protest.” Id.
44. See id.
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Article 14 sets forth provisions pertaining to forged or


altered instruments.45 Under Article 14, the information
appearing on the face of the instrument must be true and
may not be forged or altered. Those forging or altering
signatures or seals, or other matters recorded on the
instrument, will be liable.46 Significantly, the statute does not
state the instrument itself will be without effect in such a
case. Rather, it provides the instrument is effective against
the person who first signed it to the extent of its original
unaltered terms.47 Any person signing the instrument after
the alteration is responsible to the extent of the forged or
altered items.48 The rule here, therefore, is one of strict
liability for endorsers signing a forged or altered instrument,
and protection for those who take the instrument in good
faith. However, an endorser is protected by the presumption
that when one cannot determine whether a signature or seal
is made before or after the alteration occurred, the signature
or seal is deemed to have been made prior to the alteration.49
In cases in which an instrument is lost, Article 15 allows
the person losing the instrument to stop payment on it so
long as the payer (drawee) is identified on the instrument.50 It
seems that the “person losing the instrument” could refer to
the drawer, the payee, or a subsequent holder. Upon receipt
of the notice to stop payment, the payer is required to do
so.51 The party losing the instrument must apply to the
People’s Court for a public notice or file a lawsuit in the court
within three days.52 The requirement of a public notice or
lawsuit is intended to fill some sort of notice function to all
parties to the instrument. In the case of Article 15, the
Negotiable Instruments Law seems distressingly spare. What
type of lawsuit is filed? Presumably, one to collect on the
underlying debt. To whom will notice be given? Arguably, the
statute leaves a great deal of discretion to those promulgating
the implementing regulations or to the judiciary to apply its
rules or discretion to the cases.

45. See id. art. 14.


46. See id.
47. See id.
48. See id.
49. See id.
50. See id. art. 15.
51. See id.
52. See id.
1998] CHINESE NEGOTIABLE INSTRUMENTS 327

Articles 17 and 18 impose certain time limits53 with


regard to negotiable instruments.54 Under Article 17 all bills
and notes payable at sight become void within two years of
maturity.55 In the case of drafts, the holder’s rights against
the drawer will terminate six months after the date of the
draft.56 When a negotiable instrument is not accepted or is
dishonored, the holder has six months to pursue his right of
recourse against the prior holder.57 When a holder has
himself been sued, or recourse has been sought against him,
such a holder has three months to proceed against the prior
holder.58 Should the holder fail to exercise his right to make a
claim on the instrument within the specified time periods,
the holder may sue on the underlying obligation.59
Article 18 addresses the rights of a holder possessing a
negotiable instrument that has become ineffective due to the
expiration of time limits or because of deficiencies in the
instrument.60 Interestingly, the holder still retains rights
under the civil laws to request that the drawer or acceptor
remit to him the unpaid amount of the instrument.61 Perhaps
this provision is intended to allow the holder to sue the
drawer on the underlying obligation where the instrument
itself is without effect, or to mitigate the fairly short time
limits discussed above. Curiously, however, the section does
not impose any requirement that the holder have a direct
contractual relationship with the drawer apart from the
obligations under the instrument itself. Therefore, it is not
clear whether the holder can assert the contractual rights of
a prior holder in seeking payment from the drawer on the
obligation evidenced by the negotiable instrument or what
other “civil rights” might be a source of a claim for payment.
Article 18 concludes the portion of the Negotiable
Instruments Law addressing general provisions. The
succeeding chapters deal with particular kinds of negotiable
instruments: Chapter 2 (Drafts), Chapter 3 (Promissory
Notes), and Chapter 4 (Checks). Of these chapters, Chapter 2

53. Under Article 108 of the Negotiable Instruments Law, all time limits
stipulated in the law will be calculated according to the Civil Procedure Law.
See id. art. 108.
54. See id. arts. 17, 18.
55. See id. art. 17.
56. See id. art. 17(2).
57. See id. art. 17(3).
58. See id. art. 17(4).
59. See id. art. 18.
60. See id.
61. See id.
328 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

is the most detailed, describing procedures for endorsement,


acceptance, guarantee, payment, and rights of recourse. By
reference to Chapter 2, Chapters 3 and 4 apply these
provisions to promissory notes and checks.

III. DRAFTS
The first section of Chapter 2 (Drafts) addresses the
drawing of drafts.62 Article 19 states that “[a] draft is a bill
signed by the drawer, requiring the entrusted payer to make
unconditional payment in the fixed amount at the sight of the
bill or at a fixed date to the payee or the holder.”63 The
statute applies to bank drafts as well as commercial drafts.64
Drafts, and in particular bank drafts, are important payment
mechanisms in China today.65 A draft is considered drawn
when the drawer signs and delivers it to the payee.66
The drawer must have genuinely entrusted payment of
the draft to the payer (“drawee” in UCC parlance),67 and must
have “reliable sources of fund[s] to pay the draft amount.”68
This requirement seems targeted at prohibiting drawers from
passing drafts of which the ostensible payer is unaware. The
Negotiable Instruments Law forbids signing drafts without
consideration for the purpose of acquiring funds through
deception from banks or from other persons.69 Article 21 does
not elaborate on how such schemes would be effected and
the Negotiable Instruments Law does not contain official
comments in the manner of the UCC. Perhaps the reference
to a lack of consideration is intended to reflect that there is

62. See id. arts. 19–26.


63. Id. art. 19. This definition is very similar to that of the UCC. See U.C.C.
§ 3-104(a) (amended 1990), 2 U.L.A. 25 (1991) (“‘[N]egotiable instrument’ means
an unconditional promise or order to pay a fixed amount of money, with or
without interest or other charges described in the promise or order. . . .”).
64. See Negotiable Instruments Law, supra note 6, art. 19.
65. See Huang Wei, supra note 1 (discussing Chinese banks’ use of
approximately 54 million drafts annually, a total value of 4,500 billion yuan).
66. See Negotiable Instruments Law, supra note 6, art. 20.
67. See U.C.C. § 3-102 cmt. 3.
68. Negotiable Instruments Law, supra note 6, art. 21. The translation cited
here translates the first paragraph of Article 21 as follows: “The drawer of a
draft shall have real authorized payment relations with the payees and have
reliable sources of fund[s] to pay the draft amount.” Id. (emphasis added).
However, the term “payees” should be translated as “payer.” See BBC
Translation, supra note 6, art. 21 (“The drawer of a bill of exchange must have
a true relationship of payment authorization with the payer, as well as a
reliable funding source from which to pay the amount stated on the bill of
exchange.”) (emphasis added).
69. See Negotiable Instruments Law, supra note 6, art. 21.
1998] CHINESE NEGOTIABLE INSTRUMENTS 329

no legitimate basis for the transaction, and hence, a


deception is at work.
A draft must contain the following items: (1) the Chinese
characters for draft; (2) an unconditional order to pay; (3) a
fixed amount of money; (4) the payer’s name; (5) the payee’s
name; (6) the date of the draft; and (7) the signature or seal of
the drawer.70 A draft omitting any of these items will be
invalid.71 Article 23 states that “[t]he date of payment, place
of payment and place of draft recorded on the draft shall be
clear and definite.”72 However, the Negotiable Instruments
Law does not provide that a draft failing to state these
matters clearly and definitely will be invalid.73 Rather, if a
draft does not state the date of payment, it is a sight draft.74
If a draft does not state the place of payment, it shall be
deemed to be the place of business, residence, or domicile of
the payer.75 If the place of the draft is not stated, the drawer’s
place of business, residence, or domicile shall be treated as
the place of the draft.76
A draft may contain matters in addition to those specified
in Articles 22 and 23, but they will not be treated as part of
the draft for purposes of the statute.77 The due date of the
draft may be expressed in four different ways: (1) payable at
sight; (2) on a certain date; (3) at a fixed period after the draft
is drawn; or (4) at a fixed period after sight.78 The drawer
ultimately bears responsibility for payment of the draft if it is
not paid or accepted by the drawee.79 Under Article 70, if a
draft is not accepted or is dishonored, the drawer, in addition
to paying the amount owing on the instrument, may be
required to pay interest from the due date or the date of
presentation of the draft to its liquidation, as well as any
expenses incurred by the payee in “obtaining the related
certificates of dishonour and the issuing of notification.”80
Under Article 71 a holder forced to pay amounts in
accordance with Article 70 may pursue rights of “re-recourse”

70. See id. art. 22.


71. See id.
72. Id. art. 23.
73. See id.
74. See id.
75. See id.
76. See id.; see also discussion infra Part VI (discussing which country’s
law to apply).
77. See Negotiable Instruments Law, supra note 6, art. 24.
78. See id. art. 25.
79. See id. art. 26.
80. Id. art. 70.
330 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

against other “draft debtors.”81 This general reference to draft


debtors appears intended to encompass both the drawer and
previous holders, who are also liable on the instrument.
Under this provision, the draft debtors are responsible for the
same items as set forth in Article 70.82 These draft debtors
can ultimately seek relief from the drawer.83
Section 2 of Chapter 2 (Drafts) discusses endorsement.84
Under Article 27, a draft holder may transfer all or certain
rights85 arising out of the instrument. Drafts are not
transferable where the drawer writes “Not Transferable”
across the face of the draft.86 If a draft does not contain
enough space for all endorsements, an allonge may be
attached.87 An endorser must sign and date the
endorsement.88 If no date is specified, the endorsement shall
be treated as having been made before the maturity date of
the instrument.89 The endorsee’s name must appear on the
draft if the endorser proposes to transfer all or even a portion
of the rights under the draft.90 By stating that endorsements
must contain the name of the endorsee, the inference is that
endorsements to the order of bearer are not allowed.
However, a provision in Article 31 states: “If a draft is not
endorsed over to another person, the holder shall put to the

81. Id. art. 71.


82. See id. arts. 70–71.
83. See id. art. 26.
84. See id. ch. 2, arts. 27–37.
85. The exact language of the Negotiable Instruments Law regarding
endorsement is “[t]he holder of a draft may transfer the rights arising out of the
draft or authorize others to exercise some of the rights.” Id. art. 27. The
provision that an endorsement may authorize others to enjoy less than full
rights suggests some kind of restrictive endorsement. Most likely, the
Negotiable Instruments Law is referring to the kinds of restrictive endorsements
which are common in commercial practice and which traditionally do not affect
negotiability, such as “for deposit,” “for collection,” or “in trust.” See U.C.C. § 3-
206 (amended 1990), 2 U.L.A. 57–59 (1991). However, this is not explicitly
stated in the statute and hence is unclear.
86. Negotiable Instruments Law, supra note 6, art. 27.
87. See id. art. 28. An “allonge” is “[a] piece of paper annexed to a
negotiable instrument or promissory note, on which to write endorsements for
which there is no room on the instrument itself.” BLACK’S LAW DICTIONARY 76
(6th ed. 1990); see also U.C.C. § 3-204(a).
88. See Negotiable Instruments Law, supra note 6, art. 29.
89. See id.
90. See id. art. 30. The translation of Article 30 cited to herein uses the
English word “endorser” rather than “endorsee.” However, the Chinese text
should be translated as “endorsee.” See BBC Translation, supra note 6, art 30.
“The endorsee’s name must be noted on a bill of exchange when it is
transferred by endorsement or when some of the rights under the bill are
conferred on another person by endorsement for exercising.” Id. (emphasis
added).
1998] CHINESE NEGOTIABLE INSTRUMENTS 331

proof the right on the draft according to law.”91 By


implication this provision allows the creation of bearer paper
because it is not clear how a holder could obtain the
instrument without endorsement except as a bearer.
Endorsements must appear on the instrument in the
order in which the instrument was endorsed. This prevents
an endorser from signing his name above a previous
endorser’s name.92 A holder “shall prove the rights arising
out of the draft by the uninterrupted series of
endorsement.”93 This provision could be construed as
meaning the holder must sequentially assert his rights in the
instrument against previous holders, exhausting his rights
against the prior holder before proceeding to the next prior
holder. However, such an interpretation would contradict
Article 68, which states that the holder may exercise his right
of recourse “in disregard of the sequential order of the
debtors.”94 Perhaps this provision means that the sequence of
endorsement serves as evidence of the holder’s rights to the
instrument.
When making an endorsement, an endorser is deemed to
warrant the authenticity of the immediately prior
endorsement.95 An endorser may not attach conditions to his
endorsement, and if he does so, those conditions are without
effect.96 Moreover, an endorsement purporting to transfer
part or the entire amount of the draft to more than one
person is without effect.97 If an endorser writes “Not
Transferable” on an instrument, and the subsequent
endorser nonetheless transfers it, then the original endorser
who limited the instrument’s transferability is without
liability.98 When an endorser restricts the instrument’s
endorsement by noting “Collection,” the endorsee (the person
receiving the instrument from the endorser) may submit the
instrument for collection on behalf of the endorser, but may
not further transfer the instrument to others.99 As in the

91. Negotiable Instruments Law, supra note 6, art. 31. Another translation
might be: In the case of an instrument that is not transferred by endorsement
but is obtained through other legal means, the holder may prove his rights in
the instrument by producing evidence in accordance with law.
92. See id.
93. Id.
94. Id. art. 68; see infra notes 162–65 and accompanying text.
95. See Negotiable Instruments Law, supra note 6, art. 32.
96. See id. art. 33.
97. See id.
98. Id. art. 34.
99. See id. art 35. The term “collection” could be more accurately translated
as “‘collection by proxy.’” BBC Translation, supra note 6, art. 35. Thus, the
332 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

American legal tradition, the Negotiable Instruments Law


provides that a draft may be hypothecated.100
Once payment or acceptance on a draft has been refused,
or the time period for payment has passed, the draft may not
be endorsed over to others.101 If subsequently endorsed, the
person endorsing it bears liability on the draft.102 The statute
does not expressly provide that the original drawer is relieved
of liability, but arguably that may be the implication of this
section.
An endorser becomes liable on the instrument by virtue
of his endorsement.103 The liability is twofold: the endorser
guarantees acceptance or payment on the draft.104 If the draft
is not accepted or paid, then the endorser himself must
pursue payment of the amounts due as provided in Articles
70 and 71.105 Acceptance is covered by Section 3 of Chapter 2
(Drafts).106 Article 38 states the general principle that
acceptance is the act of a payer’s promising to pay the
amount of the draft when the draft falls due;107 in other
words, the acceptor becomes primarily liable on the
instrument.108 Acceptance is indicated by writing the word
“Accepted” on the face of the instrument, together with the
date of acceptance and the payer’s signature and/or seal.109
The term “presentation for acceptance” is defined as the act
of the holder in presenting the draft to the payer and
requesting the payer’s commitment to pay it when due.110
Presentation for acceptance must be made within certain
specified time periods for drafts payable at a fixed date or a

endorsee could be better understood to be the agent of the endorser, who is


entrusted to present the instrument for collection. Apparently this section is
aimed at limiting the agent’s authority. The term “endorsee” used in Article 35
is not defined elsewhere in the statute, and is used in contrast to the more
prevalent term appearing elsewhere in the statute as “subsequent endorser.”
See Negotiable Instruments Law, supra note 6, arts. 32, 34. Therefore, in this
context, presumably the term “endorsee” is used because the agent taking the
instrument under the limited endorsement of “collection” does not himself
subsequently endorse the instrument.
100. See Negotiable Instruments Law, supra note 6, art. 35.
101. See id. art. 36.
102. See id.
103. See id. art. 37.
104. See id.
105. See id.; see also infra notes 162–65 and accompanying text.
106. See Negotiable Instruments Law, supra note 6, arts. 38–44.
107. See id. art. 38.
108. See id. art. 44.
109. See id. art. 42.
110. See id. art. 39.
1998] CHINESE NEGOTIABLE INSTRUMENTS 333

fixed date after sight.111 If presentation is not made during


such time periods, the holder forfeits his right of recourse
against any prior party.112 There is no presentation
requirement in the case of “a draft payable at sight.”113 A
payer has three days within which to accept or refuse to
accept a draft.114 Acceptance may not be conditional, and if
an acceptance purports to impose conditions, then it is
equivalent to a refusal.115
The role of guarantors of drafts is addressed in Section 4
of Chapter 2 (Drafts).116 A guarantor assumes liability for
paying the amount due under a draft.117 A guarantor
indicates his guarantee by recording on the draft or allonge
the word “guarantee,” together with his name and address,
the name of the guaranteed party, the date of the
guarantee,118 and the guarantor’s signature or seal.119 When
no guaranteed party is specified, and the draft has not been
accepted, the drawer will be treated as the guaranteed
party;120 however, where the draft has been accepted, and the
guaranteed party is not named, then the acceptor is assumed
to be the guaranteed party.121 The Negotiable Instruments
Law provides that guarantees shall be unconditional.122
Where a guarantee purports to be conditional, such
conditions are without effect and the guarantor is still liable
on the draft.123 The guarantor must pay the holder who has
acquired the draft in accordance with the Negotiable
Instruments Law; the corollary of this, however, is that if the
instrument is void because it does not comply with the
provisions of the Negotiable Instruments Law, then the
guarantee is also without force.124 In this sense the guarantee

111. See id. arts. 39, 40.


112. See id. art. 40.
113. Id.
114. See id. art. 41.
115. See id. art. 43.
116. See id. ch. 2, arts. 45–52.
117. See id. art. 45.
118. Where no date is recorded, the date of the draft is considered the date of
the guarantee. See id. art. 47.
119. See id. art. 46.
120. See id. art. 47.
121. See id.
122. See id. art. 48. The Negotiable Instruments Law does not specify
whether the parties to a draft may vary its terms after a guarantor has signed,
such as extending its due date, without affecting the guarantor’s liability. See
id. arts. 45–52.
123. See id. art. 48.
124. See id. art. 49.
334 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

is conditional—it is conditioned on the validity of the


instrument itself.
The guarantor and the guaranteed party (the draft
debtor) are jointly and severally liable to pay the draft.125 The
Negotiable Instruments Law further emphasizes that if the
draft is not paid when due, the holder may proceed against
the guarantor for payment of the full amount without first
proceeding against the guaranteed party.126 Where there are
two or more guarantors, they possess joint and several
liability.127 After paying on the guarantee, the guarantor may
exercise rights of recourse against the guaranteed party and
any previous holders.128
Obligations of payment are addressed in Section 5 of
Chapter 2 (Drafts).129 Article 53 specifies certain time limits
for presenting a draft for payment;130 however, where a
holder fails to make presentation for payment within the
specified time periods, and provides an explanation for such
failure, the acceptor or payer shall nonetheless continue to
be liable under the draft.131 Where the holder presents the
draft within the required time periods, the payer must pay in
full on the day of presentment.132 A holder must sign and
relinquish to the payer a draft that has been paid.133
When making payments on a draft, a payer or paying
agent must inspect the endorsements on the draft and
examine the identification of the person presenting the
instrument for payment.134 The payer or its paying agent, as
the case may be, is liable for wrongful or negligent
payment,135 such as paying an instrument before it is due.136
Where the amount of the instrument is stated in a foreign
currency, the amount shall be paid in Renminbi at the
exchange rate in effect on the date of payment, unless the

125. See id. art. 50.


126. See id.
127. See id. arts. 51, 52.
128. See id. art. 52.
129. See id. ch. 2, arts. 53–60.
130. See id. art. 53.
131. See id. The Negotiable Instruments Law implies that a holder must
explain why presentation for payment was not made within the specified time
limits. However, the Negotiable Instruments Law provides no standard or
criteria for acceptable explanations.
132. See id. art. 54.
133. See id. art. 55.
134. See id. art. 57.
135. See id.
136. See id. art. 58.
1998] CHINESE NEGOTIABLE INSTRUMENTS 335

parties to the draft expressly agree otherwise.137 Once the


instrument has been paid, all debtors on the draft are
released from liability.138
Section 6 of Chapter 2 addresses the right of recourse.139
Under Article 61, when a draft has been rejected for
payment, the holder may pursue a right of recourse against
the endorser, drawer, or other debtors140 under the draft.141
Under the provisions of Article 61:
The holder may also exercise the right of recourse
before the due day of a draft in one of the following
cases: (1) The acceptance of a draft is refused; (2)
The acceptor or payer has died or fled or lived in
hiding; (3) The acceptor or payer has been declared
bankrupt according to law or whose business
operations have been suspended due to violations of
the law.142
In the American tradition, the payer/drawee is not liable
on the draft until he accepts it.143 Unwillingness to accept a
draft does not, however, trigger the holder’s right of recourse;
only failure to pay does so.144 By contrast, subparagraph 1 of
Article 61 makes an acceptor’s or payer’s refusal to accept a
draft grounds for the holder’s exercise of the right of
recourse.145 Furthermore, subparagraph 3 of Article 61
makes a payer’s insolvency or suspension of business
operations grounds for the exercise of a holder’s right of
recourse.146 This greatly increases the significance of
acceptance because failure to accept is treated as
tantamount to failure to pay. In reality, the failure to accept
means only that one must look primarily to the drawer for
payment. Arguably this emphasis on the importance of
acceptance arises from the commercial realities of China
today. The relative unfamiliarity with the use of negotiable

137. See id. art. 59.


138. See id. art. 60.
139. See id. ch. 2, arts. 61–72.
140. For a discussion of the Article 4 definition of “debtors,” see supra notes
21–22 and accompanying text.
141. See Negotiable Instruments Law, supra note 6, art. 61.
142. Id.
143. See U.C.C. § 3-408 (amended 1990), 2 U.L.A. 108 (1991) (“[T]he drawee
is not liable on the instrument until the drawee accepts it.”).
144. See id. § 3-409(d), cmts. 1, 4 (discussing acceptance of certified checks,
a type of draft).
145. See Negotiable Instruments Law, supra note 6, art. 61(1).
146. See id. art. 61(3).
336 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

instruments as settlement mechanisms,147 or alternatively,


the widespread incidence of fraud in their use, may make
obtaining a third party’s liability on the instrument critical to
its credibility. By their treatment of the acceptance issue, the
drafters of the Negotiable Instruments Law evidently made a
policy decision to provide protection to the draft payee by
accelerating the payee’s right to recourse in the case of an
unaccepted draft.
A holder pursuing his right of recourse must make
available the proof of refusal to accept or of dishonor which
the acceptor or payer has an obligation to provide the
holder.148 An acceptor or payer who fails to supply the holder
with proof of dishonor or a statement of reasons for refusal of
acceptance will subject the acceptor or payer to civil
liability.149 Where the acceptor or payer has fled, died, or
gone into hiding, and proof of dishonor cannot be obtained
from such person, then the holder may rely on other evidence
to prove his right of recourse.150 Additionally, in the case of
an acceptor’s or payer’s bankruptcy, the holder may rely on
court documents regarding the bankruptcy to certify the
refusal.151 Where the acceptor’s or payer’s business
operations have been suspended, the administrative decision
of suspension serves as proof of refusal.152 If the holder fails
to obtain the appropriate legal documents or proof as
specified above within certain prescribed time limits,153 then
the holder forfeits his right of recourse against prior
holders.154 However, the acceptor or payer remains liable to
the holder.155

147. Despite the large number of drafts and other negotiable instruments
used in China, cash plays a significant role in the nation’s economy. See supra
notes 2–3. It would be interesting to determine what percentage of China’s
population has any experience using negotiable instruments as a payment
method, either in the commercial or personal context. The large volume of
instruments negotiated may be used by only a small percentage of the
population, making the need to provide assurance through the mechanism of
acceptance more important.
148. See Negotiable Instruments Law, supra note 6, art. 62. This may take
the form of a “certificate of dishonor” or a “statement of the grounds for
protest.” Id.
149. See id. The extent of potential liability is not stated. See id.
150. See id. art. 63.
151. See id. art. 64.
152. See id.
153. Presumably, these are the time periods stipulated in Article 17,
regarding the statute of limitations for actions under negotiable instruments.
See supra notes 54–58 and accompanying text for a discussion of Article 17.
154. See Negotiable Instruments Law, supra note 6, art. 65.
155. See id.
1998] CHINESE NEGOTIABLE INSTRUMENTS 337

Article 66 sets forth the time period within which a


holder must notify156 prior holders of an instrument’s
dishonor. Within three days of the holder’s receipt of the
statement of refusal or notice of dishonor, the holder must
provide written notification to the immediately preceding
holder.157 The holder must then notify his prior holder in
writing within three days of receiving the notice.158 The
holder may also elect to provide written notice to all prior
holders at the same time.159 Interestingly, if prior holders are
not notified within the three-day time period, the holder may
nonetheless pursue his right of recourse against them.160 The
Negotiable Instruments Law states that failure to provide
statutory notice does not diminish a holder’s right of
recourse; however, any party who fails to notify prior holders
within the prescribed time limits may be liable for any
monetary losses incurred, up to the entire amount of the
draft.161
Holders may exercise their right of recourse against the
drawer, endorser, acceptor, and guarantor, who are jointly
and severally liable on the instrument.162 Furthermore, the
holder may pursue his right of recourse against one, some, or
all of the draft debtors (the persons specified above) without
regard to the sequential order of their endorsement.163 Even if
the holder exercises his right of recourse against one or more
of the draft debtors, the holder may continue to pursue this
right against other debtors on the instrument.164 Once a draft
debtor has satisfied the debt on the instrument, he stands in
the shoes of the holder.165

156. Under Article 67 written notice must contain the chief details of the
draft and indicate that the draft has been dishonored. See id. art. 67. The
holder must provide proof of mailing, not proof of actual receipt by prior
holders. See id. art. 66.
157. See id.
158. See id.
159. See id.
160. See id.
161. See id.
162. See id. art. 68. For a discussion of amounts due and expenses owing to
a holder exercising his right of recourse or the right of “re-recourse,” see supra
text accompanying notes 79–83. When the right of recourse or re-recourse is
exercised against a debtor, the claimant shall deliver the draft together with the
proof of dishonor and the receipts for interest and expenses received from the
debtor. See Negotiable Instruments Law, supra note 6, arts. 70, 71.
163. See Negotiable Instruments Law, supra note 6, art. 68.
164. See id. By implication, the holder should be able to pursue this right
against other debtors on the instrument only if not fully satisfied; otherwise, he
would receive more than his due. However, this fact is not expressly stated.
165. See id.; see also id. art. 72.
338 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

Article 69 limits who may possess the right of recourse:


“In the case in which the holder is the drawer, the holder has
no right of recourse to the prior holder. In the case in which
the holder is the endorser, the holder has no right of recourse
against the subsequent holders.”166 The first sentence of
Article 69 appears to address the situation in which a draft is
endorsed back to the original drawer. In such a case, the
drawer/holder cannot refuse payment and then, in his
capacity as holder, pursue right of recourse against prior
holders.167 The second sentence appears to address the
situation where a party endorses a draft to another, and
thereafter reacquires the draft, thereby becoming the holder.
Such a person cannot pursue right of recourse against
subsequent holders.168

IV. PROMISSORY NOTES


As mentioned above, Chapter 2 comprehensively sets
forth the mechanisms for negotiability in the context of
drafts. Chapter 3 focuses specifically on promissory notes,169
but incorporates by reference the provisions in Chapter 2
regarding endorsement, guarantee, payment, and right of
recourse.170
A promissory note is defined by the statute in a manner
that seems familiar enough to an American lawyer, except for
one term: “A promissory note is an instrument written and
issued by a drawer, promising to pay unconditionally a fixed
amount of money to a payee or holder at the sight of the
instrument.”171 Interestingly, the statute uses the term
“drawer” rather than “promisor,” “debtor,” or “maker.” The
translation generally cited to here translates the Chinese
term “ ” as “promissory note.” However, others have
translated it as “cashier’s check.”172 Technically, the term
should be translated as “promissory note.”173 However, use of
the translation “cashier’s check” here is supported by the
second paragraph of Article 73, which states that the

166. Id. art. 69.


167. See id.
168. See id.
169. For a discussion of the limited applicability of this chapter, see infra
text accompanying notes 171–77.
170. See Negotiable Instruments Law, supra note 6, art. 81.
171. Id. art. 73 (emphasis added).
172. See BBC Translation, supra note 6, art. 73.
173. PHILIP R. BILANCIA, DICTIONARY OF CHINESE LAW AND GOVERNMENT 486
(1981).
1998] CHINESE NEGOTIABLE INSTRUMENTS 339

Negotiable Instruments Law applies to bank checks only


(where the bank is both drawer and drawee).174
This fact is significant because nowhere in the Negotiable
Instruments Law are promissory notes between private
parties addressed. This omission makes the Negotiable
Instruments Law essentially just another banking law, rather
than a tool for facilitating and regulating the use of
negotiable instruments (promissory notes) by private parties.
One could argue that drafts are negotiable instruments
which may be employed by private parties without the
involvement of banks, yet, in the context of China, an
examination of cases involving disputed drafts reveals that
banks often are participating in the negotiation, or attempted
negotiation, of such instruments.175 The issue is whether the
Negotiable Instruments Law is a “test law” for negotiable
instruments in the manner that a specific geographic region
often is a “test site” for new laws or policies.176 Or, is the
scope of the Negotiable Instruments Law the extent of what
the PRC government perceives as necessary or useful in
promoting its plan for China’s economic development? It is
too early yet to predict an answer to this question.
Limiting the provisions of the Negotiable Instruments
Law which address promissory notes and bank notes enables

174. See BBC Translation, supra note 6, art. 73. Compare Negotiable
Instruments Law, supra note 6, art. 73, with U.C.C. § 3-104(g) (amended 1990),
2 U.L.A. 26 (1991) (defining a cashier’s check as “a draft with respect to which
the drawer and drawee are the same bank or branches of the same bank”), and
RONALD R. ANDERSON, 5A ANDERSON ON THE UNIFORM COMMERCIAL CODE § 3–
104:47 (3d ed. 1994) (defining a cashier’s check as “a draft drawn by the bank
upon itself which is accepted by the act of issuance”).
175. See Jiangling Xian Di’er Mafangzhichang su Zhongguo Nongye Yinhang
zhu Madian Diqu Zhongxin Zhihang Piaoju An [Jiangling County Second Textile
Factory vs. Madian Area Branch of the Farmers’ Bank of China Negotiable
Instruments Case], Zhongguo Shenpan Anli Yaolan [Collection of Model Chinese
Cases] [hereinafter Model Cases], 1995, 1233 (Henan Sheng Zhu Madian Shi
Renmin Fayuan [People’s Court of Madian City, Henan Province], 1993);
Changzhou Jinuo’er Dianqi (Jituan) Gongsi su Zhongguo Gongshang Yinhang
Changzhou Fenhang, Zhongguo Gongshang Yinhang Shouning Xian Zhihang
Piaoju An [Changzhou General Electric Company vs. Shouning County Branch of
Changzhou Commerce Bank of China Negotiable Instrument Case], Model Cases,
1995, 1239 (Jiangsu Sheng Changzhou Shi Jiaoqu Renmin Fayuan [People’s
Court of the Suburbs of Changzhou City, Jiangsu County], 1993); Zhongyin
Xintuo Wuzi Gongsi su Zhongguo Nongye Yinhang Xining Shi Zhihang Dongjiao
Banshichu Yinhang Chengdui Huipiao An [Bank of China Investment Trust
Company vs. East Suburban Branch of Xining City, Farmers’ Bank of China,
case involving the honoring of drafts], Model Cases, 1995, 1241 (Qinghai Sheng
Gaoji Renmin Fayuan [High People’s Court of Qinghai Province], 1992).
176. See infra note 190 (discussing Shanghai as a “test site” for the use of
checks).
340 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

the government to maintain control over the money supply


and economic relationships. Clearly, in developing a market-
oriented economy, the existence of a legal framework
governing the use of promissory notes between private
parties would seem important; however, the government’s
unwillingness to address this issue reflects a more general
dilemma: what degree of control should the government have
over economic relationships? On one level, having more
control is certainly advantageous to the government.
Nonetheless, the Chinese government has also obviously
recognized that it is necessary to relinquish a measure of
control to realize its goal of economic development.177 By not
regularizing the ability of private parties to create “private
money” through the use of enforceable promissory notes, the
government maintains more control over economic
interactions.
Another possibility, however, is that the government is
merely taking an incremental approach, and provisions
addressing uniform treatment of non-bank promissory notes
will eventually be adopted. However, because the Negotiable
Instruments Law only addresses a narrow scope of activity
relating to promissory notes and does not address the use of
promissory notes by private parties, the term “____” will be
translated herein as “cashier’s check.” The authors posit that
this translation more accurately describes the instruments
addressed by the Negotiable Instruments Law.
A cashier’s check must contain the following provisions:
1. The Chinese characters for promissory note (cashier’s
check);
2. An unconditional promise to pay;178
3. A fixed amount of money;
4. The payee’s name;
5. The date of issuance; and
6. The signature of the drawer.179
A cashier’s check omitting any of the above items is void
and non-negotiable.180 The Negotiable Instruments Law

177. See Huang Wei, supra note 1 (“Along with China’s rapid economic
development resulting from reform and opening policies, all types of negotiable
instruments have penetrated into every scope and level of Chinese society.”).
178. This is in contrast to the UCC definition of a cashier’s check as
containing an order to pay. See U.C.C. § 3-104. The characterization of a
promise to pay, rather than an order, makes sense given that the bank’s own
check and hence its agreement to pay is at issue.
179. See Negotiable Instruments Law, supra note 6, art. 76.
1998] CHINESE NEGOTIABLE INSTRUMENTS 341

stipulates that the place of payment, place of issuance, and


other matters recorded on the cashier’s check must be “clear
and definite.”181 However, failure to clearly record such items
does not affect negotiability.182 Article 74 states that the
drawer-bank must have sufficient funds to pay the amount
due under the cashier’s check.183 Under Article 75, the
People’s Bank of China must verify the drawer-bank’s
qualifications.184
The drawer is liable to pay the cashier’s check upon
presentment;185 however, the payee must make presentment
within two months of the date of issuance.186 The limited
time period for the effectiveness of these instruments
underscores the fact that they will not serve the function of
creating an alternate money supply outside the purview of
the Chinese government. Failure to present the cashier’s
check within the specified time period results in the holder
forfeiting his right of recourse against prior parties other than
the drawer.187 Because the provisions of Chapter 2 are
incorporated by reference and provide for endorsers’ and
drawers’ joint and several liability,188 the holder of a cashier’s
check may assert his right of recourse against either party.
However, Articles 79 and 80 limit the duration of this right
concerning endorsers to two months.189

V. CHECKS
Chapter 4 of the Negotiable Instruments Law addresses
checks,190 and like Chapter 3, incorporates Chapter 2 by

180. See id. A cashier’s check may contain other items, but they do not affect
negotiability. See id. arts. 24, 81.
181. Id. art. 77.
182. See id. arts. 76, 77. If the cashier’s check does not specify place of
payment or place of issuance, the drawer-bank’s place of business shall be
deemed the place of payment and place of issuance. See id. art. 77.
183. See id. art. 74.
184. See id. art. 75. Administrative procedures for doing so will be
promulgated by the People’s Bank of China. See id.
185. See id. art. 78.
186. See id. art. 79.
187. See id. art. 80.
188. See supra notes 116–28 and accompanying text.
189. See Negotiable Instruments Law, supra note 6, arts. 79, 80.
190. See id. ch. 4, arts. 82–94. Shanghai was the first area in China to allow
the use of personal checks “to save people from dragging huge piles of cash
with them to make large purchases.” China Inaugurates Personal Cheques in
Shanghai, REUTERS, LIMITED (Money Report), Oct. 9, 1995, available in LEXIS,
Asiapc Library, Allasi File. One news report indicated that more than 100
people either opened accounts or made appointments to do so on the first day
of availability of the personal checks. See China: Banks Grant Personal Checks
342 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

reference with regard to endorsement, payment, and right of


recourse.191 A check is defined as an instrument signed and
issued by the drawer, who entrusts a bank or other financial
institution to unconditionally pay the holder or payee at
sight192 the amount of the check.193 A check must contain the
following:
1. The Chinese characters for cashier’s check;
2. Order for unconditional payment;
3. A fixed amount;
4. Payee’s name;
5. Date of the check; and
6. The drawer’s signature.194
A check omitting any one of these items is invalid.195 A
drawer may make a check payable to himself.196 An applicant

in Shanghai, CHINA DAILY, Oct. 13, 1995, available in LEXIS, Asiapc Library,
Allasi File. The Shanghai branch of the People’s Republic of China issued
temporary regulations for the use of personal checks. See Zheng Jie, China:
Personal Cheques Make Broad Debut, SHANGHAI STAR, Sept. 15, 1995, available
in LEXIS, Asiapc Library, Allasi File. These regulations actually relaxed
previous restrictions on the application of checking accounts by allowing people
with certain income levels and long-term residence to apply for accounts. See
id. In 1988 the Shanghai City government promulgated “Temporary Provisions
for the City of Shanghai for Negotiable Instruments.” Shanghai Shi Jinshan
Xian Lugang Xinyongshe su Shanghai Yili Wenhua Jingying Gongsi, Shanghai
Jinshan Xian Qifeng Daohang Yiqichang Piaoju Jiufen An [Shanghai, Jinshan
County Lugang Credit Society v. Shanghai Yili Cultural Management Company,
Shanghai, Jinshan County Qifeng Navigational Instrument Factory Negotiable
Instrument Case], Model Cases, 1993, 1006, 1008 (Shanghai Shi Huangpu Qu
Renmin Fayuan [People’s Court of Shanghai, Huangpu Area], 1992 (“With
respect to what law to apply, currently we do not have a national negotiable
instruments law. Even though the Temporary Provisions for the City of Shanghai
for Negotiable Instruments . . . are only local regulations, in a case involving
negotiable instruments and this city’s enterprises, they are applicable.”).
191. See Negotiable Instruments Law, supra note 6, art. 94.
192. See id. art. 91. Article 91 stipulates that checks may not contain a later
date for payment and any later date is void. See id.
193. See id. art. 82.
194. See id. art. 85.
195. See id. But see id. arts. 86, 87 (allowing the amount of the check and
the name of the payee to be recorded later with the drawer’s permission). The
Negotiable Instruments Law does not state whether bearer checks are allowed.
If the check does not state the place of payment or place of issuance, the
Negotiable Instruments Law implies that the place of payment is the payer’s
place of business and the place of issuance is the drawer’s place of business or
residence. See id. art. 87. Query whether the drafters of the statute intended
that the place of payment is a bank where the payer is located or where the
payer’s actual place of business exists. If the latter is the intended site (and this
is what the statute states on its face), does this defeat one benefit of using a
check which is to have an instrument which may be cashed at any number of
places? A check may contain other items, but they do not affect negotiability.
See id. arts. 24, 94.
1998] CHINESE NEGOTIABLE INSTRUMENTS 343

opening a checking account must do so under his true


name.197 The applicant must be creditworthy and must
deposit a certain amount in the account.198 The drawer must
ensure that at the time of presentment for payment, the
account contains sufficient funds.199 The Negotiable
Instruments Law provides that checks may be used to
withdraw cash or to transfer funds between accounts;
specialized checks may also be printed to allow exclusively
for the withdrawal of cash or transfer of funds.200 In all cases,
the drawer is ultimately liable for payment of the amount of
the check.201
The Negotiable Instruments Law contains a very short
period for presenting a check for payment: within ten days
from the date of issuance.202 A payer may refuse to honor
checks presented after the ten-day period.203 The extremely
short time frame for presenting a check for payment may be
an indication that the Chinese government views checks as
essentially local payment mechanisms. In the alternative, the
government may again be taking an incremental approach:
Checks will first be available for local transactions before
expanding their scope of use to greater geographic
distances.204 If the payer has refused payment, the drawer
remains liable to the holder for the amount of the check.205

196. See id. art. 87.


197. See id. art. 83. Left unanswered is if one does business under a trade
name, may one open a bank account under such assumed name? Perhaps the
detailed banking regulations will address this issue.
198. See id. Presumably, the regulations will specify what this amount must
be. If not, it allows the banks leverage in determining what the amount should
be.
199. See id. art. 88. Failure to do so is “strictly forbidden.” Id. This is a
strong policy statement, however, the statute interestingly lacks penalties or
fines. It is likely that the regulations will address such matters. Or, perhaps the
judiciary will impose fines for which they will determine the amount.
200. See id. art. 84.
201. See id. art. 90. A drawer failing to pay the amount of the check will be
liable for the amount and expenses as specified in Articles 70 and 71. See id.
arts. 24, 94.
202. See id. art. 92. Other time limits may be set for checks presented in
locations different than those where they are issued. See id. This provision
would appear to recognize the difficulty of presenting a check for payment
within 10 days of issuance when, for example, the check is mailed from Beijing
to Chengdu. It is hoped that the implementing regulations will clarify this
point.
203. See id.
204. See supra note 202 (discussing the possibility of setting alternative time
limits for checks presented in different locations from those where they were
issued).
205. See Negotiable Instruments Law, supra note 6, art. 92.
344 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

By having such a short time period during which a payee


may present a check to a payer, query how useful checks will
be in transactions involving great geographic distances. If the
payee will have to look to the drawer for payment in cases
where the ten-day time period is exceeded, this severely
undercuts the convenience and usefulness of checks. The
payee will have to pursue the drawer directly, working at a
disadvantage because of physical distance. Consequently, a
payee may regard a check as no more convenient a payment
mechanism than a promissory note would be.
When the time limit for presentation is met and the payer
makes payment on the check, the payer is discharged from
liability, except in cases of gross negligence or malice.206 The
Negotiable Instruments Law does not specify what acts or
failures to act would constitute per se gross negligence or
malice. Is it gross negligence for a payer bank to make
payment on a check where the drawer’s signature is forged?
Article 85 states that to be valid, a check must contain the
signature of the drawer;207 however, the Negotiable
Instruments Law does not contain a provision comparable to
section 3-401 of the UCC which provides that a person is not
liable on a negotiable instrument unless he or she or an
authorized representative has signed it.208 Arguably, it is
gross negligence for a payer bank to honor a forged
instrument. However, given the wide usage of chops (seals) in
China and the acknowledgement of this fact in the Negotiable
Instruments Law,209 if a drawer’s chops are misappropriated
and affixed to a check together with a forged signature, is the
bank grossly negligent for honoring the check if it is unaware
of the misappropriation? Apparently, this will be a factual
determination made on a case-by-case basis and presumably
it will fall to the judges to make such decisions.

VI. FOREIGN-RELATED INSTRUMENTS


Chapter 5, which discusses foreign-related negotiable
instruments, addresses conflicts of law issues. Foreign-
related negotiable instruments are defined as “instruments
whose draft, endorsement, acceptance, guaranty or payment

206. See id. art. 93. The translation of the Negotiable Instruments Law cited
here translates these terms as “major blunder” and “ulterior motives.” Id. The
term “ . . . .” should be translated as “malice” and the term “ . . . . . . . ” should
be translated as “gross negligence.”
207. See id. art. 85(6).
208. See U.C.C. § 3-401 (amended 1990), 2 U.L.A. 91 (1991).
209. See Negotiable Instruments Law, supra note 6, arts. 4, 7.
1998] CHINESE NEGOTIABLE INSTRUMENTS 345

occur both within and outside the territory of the People’s


Republic of China.”210 International treaties to which China is
a party take precedence over the Negotiable Instruments
Law, except where China has made express reservations.211
In cases not addressed by the Negotiable Instruments Law or
international treaties to which China is a signatory,
international custom will govern.212 This is an intriguing
provision. Will Chinese courts actually look to international
custom in dealing with negotiable instruments?
Legal capacity to negotiate an instrument is controlled by
the law of the debtor’s country.213 However, if the debtor
lacks legal capacity under the laws of his country, but the
laws of the place where the act occurs allow for legal
capacity, then he shall be deemed to have legal capacity.214
With regard to what information must be contained in a draft
or cashier’s check, the law of the country where the draft or
cashier’s check was drawn applies.215 In the case of checks,
the governing law is the law of the place where the check is
issued, unless the parties have stipulated that the law of the
place of payment shall control.216
With regard to endorsement, acceptance, payment, and
guaranty, the law of the place where the act occurs
governs.217 In exercising the right of recourse under a draft,
the law where the draft is drawn shall apply regarding the

210. Id. art. 95. Arguably, the Negotiable Instruments Law does not mean
that all of the acts referred to occur both in China and in another country,
which would seem a physical impossibility. Presumably what is meant is that
certain acts occur in China and certain acts occur elsewhere, or at least there
is a potential for this to be so, under the terms of the negotiable instrument.
211. See id. art. 96. However, this provision is largely without meaning, given
that China is not a signatory to any major conventions addressing negotiable
instruments. See Xiangmin Xu & Robert Caldwell, An Analytical Perspective on
China’s Negotiable Instruments Law, CHINA BANKING & FIN., Dec. 1995–Jan.
1996, at 5.
212. See Negotiable Instruments Law, supra note 6, art. 96.
213. See id. art. 97.
214. See id. This provision brings into play other provisions of the Negotiable
Instruments Law such as Article 23. Article 23 states if the place of payment is
not specified, the place of payment shall be the business site or the residence of
the payer or the place where the payer often lives. See id. art. 23. If the place of
draft is not specified on the instrument itself, it shall be taken as the business
site or residence of the drawer or the place where the drawer often lives. See id.
If the place of payment is the business site or residence of the payer under
Article 23, then the laws of that place will determine legal capacity for purposes
of Article 97. See id. art. 97.
215. See id. art. 98.
216. See id.
217. See id. art. 99.
346 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

time limits within which such rights must be exercised.218


The time limit for presenting negotiable instruments for
payment, the method of proving dishonor, and the period for
providing proof of dishonor are determined by the law of the
place of payment.219 Where a holder has lost an instrument,
the law of the place of payment governs the procedures for
the holder to pursue his rights in the instrument.220

VII. VIOLATIONS
While Chapters 1 through 4 set forth the substantive
provisions of the law, and Chapter 5 deals with conflicts of
law issues, Chapter 6 addresses punishments for violations
of the Negotiable Instruments Law. A variety of fraudulent
acts constitute criminal behavior under the Negotiable
Instruments Law.221 Such acts are: (1) forging or altering an
instrument; (2) intentionally negotiating a forged or altered
instrument; (3) writing checks with insufficient funds or
deliberately issuing checks with a signature that does not
conform with the signature on file with the bank;222 (4)
fraudulently obtaining funds through the use of cashier’s
checks223 or drafts when there is not an actual source of
funds; (5) obtaining goods by recording false information on a
draft or cashier’s check; (6) acquiring goods or money by
wrongfully using other people’s negotiable instruments or
intentionally using past-due or invalid instruments; or (7)
maliciously colluding between the payer and drawer or holder
in committing one of the six aforementioned acts.224 Under
Article 104, if one of the foregoing acts is not considered
serious enough to constitute a crime, then an administrative
punishment may be imposed.225 Thus, notwithstanding the
provisions of Article 103 imposing criminal liability for
certain acts, Article 104 allows discretion in imposing less
severe punishments instead.226

218. See id. art. 100.


219. See id. art. 101.
220. See id. art. 102.
221. See id. art. 103.
222. See id. art. 83 (requiring an applicant opening a checking account to
leave on file with the bank an example of his signature and/or seal).
223. In this context, the person being defrauded is arguably the bank
because the bank will have sufficient funds to pay its check; however, the
person obtaining the cashier’s check may not have sufficient funds.
224. See Negotiable Instruments Law, supra note 6, art. 103.
225. See id. art. 104.
226. See id.
1998] CHINESE NEGOTIABLE INSTRUMENTS 347

The Negotiable Instruments Law imposes liability in the


case of employees of financial institutions who are negligent
in carrying out their duties and who, as a consequence,
violate provisions of the Negotiable Instruments Law.227 If an
employee’s negligence causes someone to suffer severe
losses, then the employee may be criminally liable.228
Liability to compensate parties for losses extends to the
financial institution itself and to supervisory personnel.229
Where a payer intentionally delays payment on a negotiable
instrument that is due, the payer will be subject to fines, and
those directly responsible will be administratively
sanctioned.230 A payer who through delay causes losses to
the holder of a negotiable instrument must compensate the
holder accordingly.231 Under Article 107, civil liability is
available for acts violating the Negotiable Instruments Law,
but for which compensation is not specifically provided.232

VIII. CONCLUSION
The Negotiable Instruments Law is an important step in
developing a body of commercial law in China. However, its
scope is narrow in that it addresses negotiable instruments
primarily in the context of banking transactions. This is
especially apparent in the case of promissory notes that are
regulated solely in their use as bank notes.233 It will be
interesting to observe whether, in the future, the Chinese
government will, either through enactment of implementing
regulations or passage of an amended statute, develop laws
regarding promissory notes and their use in private settings.
On the whole, the Negotiable Instruments Law is well
drafted and well organized; however, a critical weakness is
the absence of a comprehensive definitional section.234 For
example, throughout the Negotiable Instruments Law, the

227. See id. art. 105.


228. See id.
229. See id. Perhaps it is pursuant to Article 105 that a bank, and possibly
its employees, would be found liable for honoring a check containing the forged
signature of the drawer. See supra text accompanying notes 227–29.
230. See Negotiable Instruments Law, supra note 6, art. 106.
231. See id.
232. See id. art. 107.
233. For a discussion of promissory notes versus cashier’s checks, see supra
notes 171–90 and accompanying text.
234. One way of remedying this would be to include official comments in the
manner of the UCC.
348 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 20:2

term “other debtors” is used, but not clearly defined.235


Additionally, its meaning apparently changes depending on
the context.236 Moreover, the Negotiable Instruments Law
appears to incorporate, in part or in whole, certain terms of
art which are well-established in American negotiable
instruments law—such as “holder in due course”—without
express definition.237
The Negotiable Instruments Law addresses negotiable
instruments in a particularly Chinese setting. The
significance of certain provisions at the outset may be
unclear; however, they reflect the circumstances and
perceptions of China’s developing market economy and legal
system. For example, Article 21 forbids signing drafts where
there is no consideration to acquire funds through deception,
such as in circumstances where there is actually no
underlying transaction and the parties are attempting to
create a false draft. The Negotiable Instruments Law fails to
specify or clarify why such a provision is needed or what
constitutes this kind of deception; however, presumably this
provision exists because parties in China are currently
engaging in this kind of behavior.
The Negotiable Instruments Law contains drafting
weaknesses characteristic of Chinese statutes in terms of
providing a standard, exception, or prohibition, without
defining the stated term. One example is Article 53, which
provides that an acceptor or payer is still liable under a draft
when a holder fails to make presentation within the time
periods specified in the statute but supplies an explanation
for such behavior.238 The Negotiable Instruments Law does
not elaborate on what constitutes an acceptable explanation
or who would make such a determination, nor does it specify
standards or examples.239 Absence of a clear standard means
that the parties involved must resort to administrative or
judicial procedures to obtain an interpretation of the section.
One advantage of this drafting technique, however, is that it

235. For a discussion of Article 13, see supra notes 41–44 and accompanying
text.
236. See id.
237. For a discussion of the treatment of the “holder in due course” concept
in the Negotiable Instruments Law, see supra notes 33–40 and accompanying
text.
238. See Negotiable Instruments Law, supra note 6, art. 53.
239. See id.
1998] CHINESE NEGOTIABLE INSTRUMENTS 349

provides such authorities a great deal of flexibility in applying


the statute.240
The passage of the Negotiable Instruments Law
demonstrates that the government recognizes the importance
of negotiable instruments in a market economy. While the
scope of this law is admittedly narrow, it focuses on
regulating significant aspects of negotiable instrument
transactions. Consequently, the Negotiable Instruments Law
should provide an important framework for the use of bank-
related negotiable instruments in China’s burgeoning
economy.

240. See Pamela Yatsko, Strings Attached, FAR E. ECON. REV., Jan. 16, 1997,
at 52; see also Law of the P.R.C. to Administer the Laying and Collecting of
Taxes, art. 20 (Aug. 4, 1993), translated in [Tax’n & Customs] China L. For.
Bus. (CCH) para. 39-622, discussed in Amy L. Sommers & Kara Lea Phillips,
Assessing the Tax Administration Law of the People’s Republic of China, 18 LOY.
L.A. INT’L & COMP. L.J. 339, 356 & n.96 (1995) (“Notwithstanding the obligation
of taxpayers to pay taxes when due, Article 20 of the Tax Administration Law
provides for the grant of extensions ‘due to special difficulties.’ Neither the Tax
Administration Law nor the Implementing Regulations define the term ‘special
difficulties.’”) “‘Because so many things are new, China always leaves room for
fine-tuning.’” Yatsko, supra (quoting Andrew Goodwin, a British attorney
posted in Shanghai).